ARH23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1513

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The applicant is a citizen of Iraq and arrived in Australia by boat in July 2013. In September 2017 he lodged an application for a Safe Haven Enterprise Visa (SHEV) with what is now the Department of Home Affairs (Department), alleging that he feared persecution because of his engagement with the emo sub-culture and perceptions that he was homosexual. On 27 October 2022 a delegate (Delegate) of the first respondent (Minister) refused the applicant's application and referred his matter to the second respondent (IAA) for review. He was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA's decision.
2. In this judicial review proceeding the Court cannot rehear the applicant's application for a visa. Its task is to determine whether the IAA's decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (Act); Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.
3. For the reasons which follow, the application will be dismissed.

STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA

1. Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:

36 Protection visas - criteria provided for by this Act

...

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or ...

(2A) A non-citizen will suffer significant harm if:

(a) the non-citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non-citizen; or

(c) the non-citizen will be subjected to torture; or

(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non-citizen will be subjected to degrading treatment or punishment.

(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a) in a case where the person has a nationality - is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b) in a case where the person does not have a nationality - is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.

...

5J Meaning of well‑founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

(2) A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.

(3) A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a) conflict with a characteristic that is fundamental to the person's identity or conscience; or

(b) conceal an innate or immutable characteristic of the person; or

(c) without limiting paragraph (a) or (b), require the person to do any of the following:

(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii) conceal his or her true race, ethnicity, nationality or country of origin;

(iii) alter his or her political beliefs or conceal his or her true political beliefs;

(iv) conceal a physical, psychological or intellectual disability;

(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b) the persecution must involve serious harm to the person; and

(c) the persecution must involve systematic and discriminatory conduct.

(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person's life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill‑treatment of the person;

(d) significant economic hardship that threatens the person's capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.

1. The applicant's original claims to fear harm in Iraq were made at irregular maritime arrival interviews conducted on 3 August 2013 and 19 August 2013 and were set out in a statutory declaration dated 16 September 2017 that was included with his visa application. They were summarised by the Minister in his written submissions as follows:

(a) The applicant claimed to fear harm in Iraq because he had adapted a western lifestyle, and had western hairstyles, western shirts and tattoos. He claimed that he had friends who were part of an "emo" group, and that he was fascinated by the philosophical background of these groups. He further claimed that he adapted the "emo" style in 2010, and that he faced hatred from his other friends and society in general who looked at him as a "freak" or "gay", which included daily insults. > > (b) The applicant claimed that, in around October 2011, he was kidnapped by the Mahdi army when he was trying to visit his friends. He was taken in a van by four masked men who said they were Jaish Almahdi, blindfolded and driven to an old school, where he was accused being [sic] an emo and "gay". He denied that, was beaten, and told he breached the Islam faith. He was released four days later, following which he went to hospital and then stayed at home for almost six months. During that time, one of his friends disappeared. > > (c) On 27 May 2012, he had an operation to fix the ligaments in his knee that were damaged during the torture he claimed he received in 2011. Towards the end of 2012, the applicant was contacted by one of his friends and started going to Baghdad to attend "emo" gatherings. In mid-February 2013, another friend was killed in an explosion at his barber shop, following which the applicant applied for a visa to Iran and went to Iran for a brief period in March 2013, but returned for reason that he failed to find a smuggler to help him. > > (d) The applicant claimed that, on 24 May 2013, he was kidnapped by the Mahdi army again and was taken to an old house where he was told he would be killed because he had not learnt from his past experiences. He claimed that photographs were taken of his tattoos, militia members burned his upper arm and said they would cut off his genitals. Later that evening, police raided the place where he was kidnapped, and he was taken for medical treatment. He subsequently left Iraq on 12 June 2017 (sic).

1. On 10 September 2019, the applicant attended an interview with the Delegate (SHEV interview) at which he claimed that he was in fact homosexual and was exclusively attracted to men, although he also disclosed that he had a girlfriend in Australia.
2. On 2 August 2022 the applicant was given letters dated 30 June 2022 and 1 August 2022 inviting him to comment on information identified by the Department in his departmental interview, in his protection visa application, in police records and in documents tendered in a separate Court proceeding, that indicated that he had given inconsistent accounts of his educational and work histories, his sexuality, and the circumstances of his father's death, and had advanced claims to have fled Iraq to avoid torture by an extremist militia group because he had refused conscription into its ranks.
3. In his response the applicant provided information explaining why, in his view, those various accounts were not inconsistent with each other.
4. On 30 January 2023 the applicant attended a telephone interview with the IAA when he reconfirmed that he was homosexual and had been in two romantic relationships with men whilst living in Australia. He disclosed that he had previously had a girlfriend in Iraq.

1. After discussing the claims made by the applicant and the evidence before it, the IAA was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2) of the Act. The Minister's submissions summarised the IAA's findings and reasons relevantly in the following terms which I also adopt:

1. The IAA considered that the applicant gave differing evidence as to why he left Iraq for Australia, and why he was kidnapped and harmed by the militias. It also considered the applicant's evidence regarding the claimed kidnapping incidents to be general, incoherent, and unconvincing and, ultimately, did not accept that they occurred. 2. The IAA noted that the applicant's claims as to why he left Iraq advanced in his arrival interview, SHEV application and SHEV interview were inconsistent with what was recorded in the sentencing remarks made by Judge Craigie in March 2022, which indicated the applicant gave evidence that he was targeted for conscription from the age of 18 and fled Iraq as a result. During his IAA interview, the applicant claimed he was kidnapped twice because of his homosexual sexual orientation and claimed that there was no discrepancy in his accounts regarding why he left Iraq. The IAA found the applicant had not adequately explained what it considered to be problematic evidence (noting that being targeted for reasons of forcible recruitment was different to being targeted because of a person's appearance, lifestyles and sexual orientation) and was concerned he provided different reasons for his claimed kidnapping to the sentencing Court to those advanced in relation to his SHEV application. 3. The IAA found the applicant's evidence in relation to the claimed kidnapping incidents was unpersuasive for the following reasons:

(a) in his SHEV application he stated that during the first incident he knew it was the JAM militia because they told him, but in his SHEV interview, he said he thought they were JAM because of the way they dressed; > > (b) he claimed in his SHEV application that his captors removed his shirt during the first incident to see his tattoos, but in his SHEV interview stated he was wearing a sleeveless top; and > > (c) at the IAA interview he said that, during the second incident he was not killed because the militia did not have a camera to record it, but in his SHEV application he said they had taken photos of his tattoos, which suggested they had a camera.

1. The IAA had regard to the documentary evidence before it in relation to the applicant's kidnapping claims. It accepted that the applicant had a knee injury and received treatment. It also accepted that he had tattoos in Iraq on his upper arms, and that he had got new tattoos in Australia to cover his old tattoo (a cross with a love heart) and scars. However, the IAA was not satisfied the applicant's knee was injured by the JAM militia or in the circumstances claimed, or that the scar over his tattoo was burnt in the episode as claimed. The IAA also did not accept that the applicant suffered other injuries in Iraq. 2. The IAA accepted that the applicant wore short hair and modern outfits when he was in Iraq, but considered his evidence regarding his claims that he adopted an emo lifestyle, and his sexual orientation, was superficial, generic, and lacked depth. It also considered the applicant's evidence regarding his past relationships to be general, lacking in specificity and unconvincing. 3. The IAA did not accept that the applicant had ever dated, felt attracted to, or been in romantic relationships with men. That finding followed the IAA's consideration of the applicant raising the claim of his sexuality for the first time during his SHEV interview; his inconsistent evidence about how many serious intimate relationships he had had; his generic and lacking in depth evidence regarding his own homosexual sexual identity; the fact that he dated a girl in Australia despite claiming that he discovered his attraction to men in Iraq through his first unsuccessful relationship with a girl in 2006/2007 and that he then dated boys; and the fact that the applicant provided no independent evidence corroborating his claimed relationships with [D and H]. The IAA also found that the applicant's evidence in relation to details of his two claimed gay partners, [D and H], who he said he had lost contact with, to be general, superficial, lacking in detail and very unpersuasive. The IAA further noted that, while the applicant claimed to have lost contact with [D] because his mobile that had his contact information was stolen, he was able to maintain contact with his mother. The applicant also did not recall the name of [D]'s barber shop, despite claiming to go there when he was bored, and his claim that he did not have time to go and fix his hair in Australia was at odds with him visiting [D] regularly at a barber shop. The IAA also noted that the applicant's evidence regarding the activities he claimed to do with [D and H] was unpersuasive and could equally describe activities that friends would do together and did not substantiate the applicant's claims to have been in romantic relationships with [D and H]. 4. The IAA did not accept that the applicant adopted an "emo" lifestyle in Iraq or that he joined any emo groups, had emo or gay friends, or that his friends were kidnapped, harmed or killed by the militias, or that he attended any emo gatherings. Having regard to the applicant's responses to questioning concerning the "philosophical background of the emo group", his claimed emo dress and associations, the emo gathering in Baghdad and the fact that the applicant's Facebook posts from 2015 to 2018 showed "more of a 'bodybuilding' style, or a muscle culture look, not an emo lifestyle", the IAA found that the applicant's evidence in this regard was superficial, generic and lacking in substance. For instance, the IAA noted that the applicant was unable to give any specific evidence about what he liked, when asked about emo philosophy, said that emo meant his haircut, western shirts and tattoos and nothing else, and provided no examples of songs he listened to. 5. The IAA also did not accept that the applicant no longer followed the Shia faith, that he had been truthful in his claims, or that he had ever come to the adverse attention of the militias or anyone in Iraq. The IAA did not accept that the applicant would be perceived as "emo", gay or otherwise not conforming with the Islam faith due to his western clothing and tattoos.

1. In his amended application the applicant alleged:
   1. The Second Respondent (IAA)'s decision (Decision) was affected by jurisdictional error because its rejection of the Applicant's evidence about his two serious relationships with men was based on irrational reasoning.
      1. The IAA rejected as "unpersuasive" the Applicant's evidence about how he spent his time with his former partners, because the activities described were "equally" those that friends would do together.
      2. The IAA found the Applicant's failure to provide contact details for his two former partners undermined the credibility of his evidence as to those relationships.
      3. The IAA found that the Applicant's claim to have lost contact with his former partner [D] while in jail, while he had been able to stay in contact with his mother, was not credible.

Particulars

(a) The IAA found the Applicant's evidence about activities he did with his former partners [D and H] was unpersuasive: [76] of the IAA's reasons for the Decision (R);

(b) To support that conclusion, the IAA stated that the activities described, such as eating Thai food and playing pool, "may equally describe activities that friends would do together, and do not substantiate the applicant's claims to have been in romantic relationships with [D and H]": R[76];

(c) This reasoning irrationally failed to recognise that romantic relationships commonly involve activities like eating food and recreational activities that friends may do, and that this factor did not make the Applicant's evidence to have been in a romantic relationship any less plausible;

(d) On a proper construction of the Decision, the IAA suggested that to give credible evidence of a romantic relationship, the Applicant should have to give evidence of activities which distinguish a romantic relationship from a friendship, thus inappropriately requiring that the Applicant give evidence of sexual activity in order for his sexuality-based claim to be viewed as credible;

(e) In rejecting the Applicant's evidence about his previous relationships, the IAA described it as "notabl[e]" that the Applicant could not provide contact details for [D and H]: R[76];

(f) The Applicant had provided plausible explanations for losing touch with both men;

(g) The IAA cast doubt on the Applicant's evidence that he lost contact with his former partner [D] by referring to the fact that the Applicant was able to maintain contact with his mother: R[76];

(h) The fact that the Applicant maintained contact with his mother as he had her phone number written down did not contradict his evidence that he had lost [D]'s phone number and could not contact him from prison;

(i) This irrational reasoning is a form of jurisdictional error;

(j) The IAA's rejection of the Applicant's evidence about his two relationships with men was material to its rejection of his claim to fear persecution based on his sexuality.

1. The Decision was affected by jurisdictional error because its rejection of the Applicant's claim that he feared persecution because of his sexuality was based on irrational reasoning, namely the premise that the Applicant could not have entered into a relationship with a woman after realising his attraction to men.

Particulars

(a) The IAA rejected the Applicant's claim that he was gay: R[81];

(b) The IAA suggested that evidence that the Applicant had entered a relationship with a girl in Australia undermined his credibility: R[74];

(c) The IAA referred, without criticism, to the letter from the Department's delegate that the Applicant's claim to be a homosexual was inconsistent with evidence that he had been in a relationship with a female: R[69];

(d) It was therefore a premise of the IAA's reasoning that the Applicant could not have entered into a relationship with a woman after realising his attraction to men;

(e) This premise is irrational in circumstances where sexuality is not rigid, but rather is fluid;

(f) The premise is also irrational in circumstances were where the Applicant's fear of persecution depended more on how his sexuality was perceived rather than how he expressed it;

(g) The IAA's rejection of the Applicant's claim that he was gay was material to its rejection of his claim to fear persecution based on his sexuality.

1. The Decision was affected by jurisdictional error because the IAA failed to consider relevant material.

a. The IAA failed to consider that the Applicant was in custody.

1. The IAA failed to consider the Applicant's evidence that [D] had no immediate family.

2. The IAA failed to consider that [H]'s family had taken him back to Iraq.

3. The IAA failed to consider the Applicant's evidence about [D]'s barber shop.

Particulars

(a) The IAA criticised the Applicant for failing to provide independent evidence to corroborate his claimed relationships: R[76];

(b) On a proper construction of the Decision, the IAA was critical of the Applicant for failing to provide further evidence to the Department's delegate to support his claimed sexuality and association with the LGBTIQ+ community when invited to do so: R[69];

(c) The IAA found that it was not plausible that the Applicant did not think [D] knew he was in jail when he had characterised their relationship as serious with frequent contact: R[76];

(d) The Applicant's evidence had instead been that he did not know whether [D] knew he was in prison, and that he had not been able to contact [D];

(e) The Applicant had been in prison since 2020, with limited access to the outside world, including a phone, the internet, and social media;

(f) While in prison, the Applicant has not been able to explore his sexuality and engage with the LGBTIQ+ community;

(g) The Applicant's ability to gather evidence was therefore limited;

(h) The IAA did not acknowledge this limitation in relation to the reasoning outlined above;

(i) The IAA criticised the Applicant's evidence that he had not met the families of [D and H]: R[76];

(j) The IAA did not take into account the Applicant's evidence at interview that [D] had no immediate family;

(k) The IAA did not take into account, in relation to this criticism at R[76], the Applicant's evidence that [H]'s family had taken him back to Iraq because they did not like his relationships with men;

(l) The IAA was critical of the Applicant's failure to give the name of [D]'s barber shop: R[76];

(m) The IAA did not take into account the Applicant's detailed evidence about the location of the barber shop, given at evidence;

(n) Each of these factors was relevant to the Applicant's credibility in relation to his sexuality claim;

(o) The IAA's findings on credibility on this issue were material to its ultimate decision to reject the Applicant's sexuality claim.

1. The Decision was affected by jurisdictional error because its rejection of the Applicant's evidence that he had been kidnapped and tortured twice by the Al-Mahdi militia because he was perceived as an "emo" or gay was based on irrational reasoning, namely the premise that because the Al-Madhi militia had killed men who presented as emo or gay, the Applicant's claims to have survived being kidnapped and to have had a gap between the two kidnappings was implausible.

Particulars

(a) The IAA rejected the Applicant's claim to have adopted an "emo" lifestyle: R[81];

(b) The IAA rejected the Applicant's account of being kidnapped: R[81];

(c) The IAA referred to country information which suggested that at the relevant time, men who were accused of being homosexual or "emo" were killed by militias, including the Al-Mahdi militia: R[44];

(d) The IAA suggested to the Applicant that country information which indicates that people in Iraq who were perceived as emos in 2011 were killed or dealt with very violently did not support his claims of being kidnapped and beaten and threatened in 2011, and then again in 2013, when he was harmed but not killed;

(e) The IAA reasoned that country information that Iraqi men who were perceived as emo or gay around 2011 were abducted, violently harmed and brutally killed meant that the applicant's claim to have been kidnapped and beaten in 2011, then released until his second kidnapping in 2013, without being harmed in the intervening period, was not plausible: R[79];

(f) The country information did not suggest that all men presenting as emo or gay were killed;

(g) The country information did not suggest that all men presenting as emo or gay were immediately and inevitably harmed;

(h) In the premises, it was irrational for the IAA to consider that the country information undermined the Applicant's claims.

1. The Decision was affected by jurisdictional error because its findings as to the Applicant's credibility were based on irrational reasoning in respect of the District Court's remarks on sentence, namely that they reliably established that the Applicant had given inconsistent accounts.

Particulars

(a) The IAA rejected the Applicant's claim that he was gay: R[81];

(b) The IAA rejected the Applicant's claim that he had previously had two serious relationships, which were with men: R[81];

(c) The IAA was not satisfied that the Applicant had been truthful in his claims: R[81];

(d) The IAA concluded that the remarks on sentence of the NSW District Court dated 11 March 2022 established that the Applicant had given inconsistent accounts of his reasons for leaving Iraq and for being kidnapped: R[33]-[37];

(e) The IAA concluded that the remarks on sentence of the NSW District Court dated 11 March 2022 established that the Applicant had given inconsistent accounts as to his history of relationships: R[70]-[73];

(f) The Applicant's narrative reflected in the remarks on sentence was based on the Court's synthesis of:

1. A report written by a forensic psychologist who had interviewed the Applicant, at first with the assistance of an interpreter, and then later without the assistance of an interpreter; and

b. A letter from the Applicant's mother;

(g) That synthesis therefore represented a third- fourth-hand version of whatever the Applicant had originally said, to the interpreter, his mother, and/or the psychologist;

(h) The IAA did not have access to the psychologist's report, a transcript of the interview on which the report was based, or the letter from the Applicant's mother;

(i) The exact reason for the Applicant's experiencing torture at the hands of the Al-Mahdi militia and his journey from Iraq, the Applicant's relationship history, and the Applicant's sexual orientation were not relevant to the sentencing exercise being performed by the Court;

(j) There were compelling similarities between the narrative given to the IAA and that reflected in the remarks on sentence;

(k) In the premises, the IAA could not reasonably be satisfied that the Applicant had actually given inconsistent accounts;

(l) It was irrational for the IAA to use the remarks on sentence to reason that the Applicant lacked credibility.

1. The first ground of the application alleges that it was irrational of the IAA to have rejected the applicant's claims of homosexuality and referred in that regard to aspects of his evidence that the IAA found unpersuasive of that allegation.
2. The particulars of the allegation cite certain evidentiary matters which were supportive of the applicant's claims of homosexuality but the allegation as particularised did not rise above a complaint concerning an assessment of the evidence, which was within jurisdiction. It was not irrational of the IAA to observe that the anodyne activities in which the applicant claimed to have participated with his two supposed lovers in Australia did not identify the relationships as romantic or sexual rather than merely platonic. It is also to be noted that the IAA said that the applicant's:

... evidence regarding his claimed homosexual sexual identity was generic and lacked depth. His answers at the IAA interview did not give the impression that he was speaking from personal experience.

In those circumstances it was not irrational of the IAA to have been unconvinced that the relationships had been of the former sort. Given the evidence available to the IAA and which it discussed in connection with the other matters particularised in this allegation, similar considerations apply to those matters and particulars.

1. The evidence before the IAA did not require a conclusion on the applicant's relationship history different from the one that it reached. It was not irrational of the IAA to have been unpersuaded by the applicant's claims that his relationships with D and H had been intimate or romantic in nature.

1. Turning to the second ground of the application, the applicant would have it that the IAA disbelieved his claims of homosexuality because he had entered into a relationship with a woman. However, the situation was not so simple. The IAA noticed evidence which indicated that the applicant's heterosexual relationship in Australia lasted longer than either of his two allegedly serious homosexual relationships did and apparently had involved emotional commitment, at least from his side:
   1. The applicant's above evidence at the IAA interview regarding the duration and nature of his past relationships is also different to the evidence in the 2022 sentencing remarks. There is some overlap, for example, the sentencing remarks indicates that the applicant had told the court that he had two serious intimate relationships, which reflects his later evidence during the IAA interview. However, he also said the second of these was current at the time of the report, and of some four years' duration, and that he had been living with his partner when arrested. There were no children of the relationship, and he spoke of being hopeful at some stage of starting a family with his partner.

...

1. ... It was clear from the applicant's own evidence at the SHEV interview and the evidence from the police checks that he was in a relationship with a female, and he had an argument with his girlfriend because she was seeing other men. He also said that the relationship with his girlfriend failed because of his sexual orientation. I have difficulty accepting as credible that he would have had an argument with her because she was seeing other men, or that their relationship failed due to his sexual orientation, if they were just normal friends or housemates. ... His explanations also do not explain the inconsistencies between the evidence presented to the court that he was in the same relationship for four years' duration and had been living with his partner when arrested in Australia, and his evidence to the IAA that his only two relationships in Australia were with men and were only of one year and two and a half years in duration respectively, and neither of whom he suggested shared the same residence with him.

The IAA's concerns regarding the applicant's sexual orientation were far from irrational given that evidence and it was not illogical of it to have been unpersuaded by his assertions in that regard.

1. The second ground also fails to have proper regard to the applicant's allegation that his sexual orientation was homosexual and, by implication from the absence of any claim to additional or alternative orientations, solely so. As the applicant's counsel said in addresses:

What he expressed was a preference for men, and that is consistent with evidence that he attempted relationships with girls but they failed because he, ultimately, wasn't interested.

The fact that the applicant entered into a relationship with a woman in Australia, as distinct from attempting a relationship, ran contrary to the case he sought to make and it was not irrational of the IAA to conclude that it undermined a key element of his claim to fear persecution in Iraq based on his sexual orientation.

1. The third ground of the application alleged that the IAA failed to have regard to certain matters when concluding that the applicant had failed to adduce evidence persuasively corroborative of his claimed homosexual relationships. Much of the applicant's failure in this regard concerned his inadequate evidence concerning those relationships and their incidents generally, rather than the matters alleged as the basis for this allegation. It is apparent that the IAA was aware:

(a) that the Applicant was in custody;

(b) that H's family had taken him back to Iraq; and

(c) of the applicant's evidence about D's barber shop.

It may be that the IAA failed to consider the applicant's evidence that D had no immediate family but although the fact that the applicant had never met D's family was a matter of interest, it was not a matter of significance:

1. ... The applicant has not met the family members of [D and H], which of itself is not necessarily indicative of whether a relationship existed or not, but perhaps more notably he could not provide [D and H's] contact details. He has also not provided any independent evidence to corroborate his claimed relationships with them.

1. More relevantly, the matters that the applicant alleged were not considered were not ones that the rules of procedural fairness required be considered or were of such evidentiary significance that, even if they had been overlooked, consideration of them would have opened to the applicant the chance of a different review outcome. In the circumstances, the IAA was under no obligation to refer to them more than it did: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 [45]-[46].

1. The fourth ground of the application alleges error in the IAA's finding that, because other men in Iraq who were perceived to be emos or gay were murdered, the applicant's claim that he survived two kidnappings by militia groups arising out of the perception that he too was an emo or gay, was not credible. The applicant argued that not every man in Iraq who was perceived to be emo or gay would be killed and so it was illogical of the IAA to have reasoned that his escape indicated that he had not presented as an emo or as a gay man while in Iraq. However, although it might logically be thought that not everyone in Iraq who presented at the relevant time as an emo or as a gay man was killed, or was killed if seized by a militia group, no evidence supportive of that proposition was advanced and it was not what was put to the applicant by the IAA. Indeed, in his written submissions the applicant refers to the following passage of the transcript of his IAA interview:

REVIEWER: I've also obtained country information, which indicates that people in Iraq, who are perceived as emos, or who are emos, back in the time when you say you were kidnapped, which was around 2012 or 2011, were killed or dealt with very violently, and stoned to death because they were perceived as emos. This does not seem to support your claims of being kidnapped and beaten and threatened in 2011, and then again, one and a half years later, in 2013, where you said you were harmed, but you were not killed. Would you like to comment on that?

In response to that inquiry the applicant did not suggest to the reviewer that there were exceptions to the practice in Iraq of killing men who were perceived to be emos or gay. He has not done so until now.

1. What the applicant is seeking to do at this stage of the matter is to raise a new factual contention, and moreover to do so without identifying evidence that supports it. He may not do that. The fourth ground of the application does not identify jurisdictional error on the IAA's part.

1. In the fifth ground of the application the applicant alleges that it had been irrational of the IAA to place reliance on the factual accuracy of the remarks of Judge Craigie when sentencing the applicant in the District Court. In his written submissions the applicant has said:
   1. The Authority's reasoning did not account for the fact that the sentencing remarks reflected Judge Craigie's interpretation of a narrative given by the applicant and/or his mother, refracted through an interpreter, and then a psychologist's report; that in some parts of the interview with the psychologist the applicant did not even have the benefit of an interpreter; that the District Court's sentencing was not a setting in which the nuances as to why the applicant had been tortured or fled Iraq, or with whom he was in a relationship, or what his sexuality was, had any materiality; and that the Authority had not seen the primary material upon which Judge Craigie's remarks were founded. In these circumstances, the Authority was not in a position to evaluate whether the applicant had actually given inconsistent versions. That is particularly so given the similarity between the various accounts: in respect of the kidnapping, the claims that the applicant had been kidnapped and tortured twice, the injuries he suffered, and his brief escape to Iran; and in respect of his relationships, the fact that he had two serious relationships, one of which commenced in 2018, and he had discussed having children with this partner.
2. The IAA was not bound by the rules of evidence and the sentencing remarks of Judge Craigie were matters to which the IAA could have regard. What weight they were to be given was a matter for the IAA. This ground is, in substance, no more than an argument about the weight given to his Honour's recounting of the evidence before him. As such it does not identify jurisdictional error.

1. Jurisdictional error on the part of the IAA has not been demonstrated.
2. Consequently, the application will be dismissed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.